Crawford v. Scott

Eish, C. J., and Atkinson, J.,

dissenting. We can not agree to the opinion of the majority of the court in this case. The Civil *766Code, § 3300, provides, “When an execution shall issue upon the foreclosure of a mortgage on personal property, as hereinbefore directed, the mortgagor, or his special agent, may file his affidavit of illegality to such execution, in which affidavit he may set up and avail himself of any defense which he might have set up, according to law, in an ordinary suit upon the demand secured by the mortgage, and which goes to show that the amount claimed is not due.” Section…